Reading the tea leaves of the nine justices who sit on high at the Supreme Court can be tricky, but experts told LifeZette the federal government appears to occupy firm legal ground as it prepares to defend the so-called travel ban.
The nation’s highest court will hear oral arguments from both sides Wednesday in one of the most highly anticipated cases of the term.
At issue is whether President Donald Trump has broad unilateral authority to exclude foreigners to enter the United States, as a 1952 statute suggests, or whether an executive order he issued last year amounts to an unconstitutional “Muslim ban,” as opponents contend.
“The big question is, does the court look at campaign statements? And does it grant deference to the executive?” said Josh Blackman, a professor at South Texas College of Law in Houston.
Lower courts had blocked Trump’s executive order, citing the president’s December 2015 call for a “total and complete shutdown” of Muslim immigration, along with other statements he made on the campaign trail and on Twitter.
But the Supreme Court in June ruled that the order — with some restrictions — could take effect while the case worked its way up the judicial ladder. Blackman said that is a good sign for the administration. Generally when the Supreme Court overturns a lower court’s injunction, he said, it means the justices also end up reversing the final decision.
“I’m pretty hopeful,” added Christopher Hajec, director of litigation at the Immigration Reform Law Institute (IRLI). “Under our constitutional form of government, the decisions over who to let in and who to keep out are for the people and no one else.”
The justices likely would be leery of putting campaign speech in play because it could have a chilling effect on full political debate, Hajec said.
The effect of trying to discern intent from campaign statements — rather than simply examining the text of the executive order — would mean that the exact same directive ruled legal for one president could be rejected if issued by another.
“It would look like the courts are invalidating Trump’s policies because they don’t like him,” Hajec said.
If justices do decide to look beyond the document to Trump’s statements, “ballgame’s over,” Blackman said. “Then his presidency is basically over, because he’s offended just about every group there is.”
Such a precedent would give the courts a green light to second-guess all kinds of executive decisions, Blackman said.
Hajec said the administration’s case has only grown stronger as Trump revised the order two different times. Initially, the justices let the travel ban take effect but ruled it could not be applied to foreigners with a “bona fide” relationship to the United States.
The latest iteration of the executive order cast a wider net, banning all or some travelers from eight nations — Chad, Iran, Libya, North Korea, Somalia, Syria, Venezuela, and Yemen.
“If Trump is trying to exclude Muslims, he’s not doing a very good job.”
All of those countries either have dysfunctional governments or policies hostile to the United States. In addition, Venezuela and North Korea are not even majority-Muslim nations. And even the earliest version of the order exempted most of the world’s Muslims.
“If Trump is trying to exclude Muslims, he’s not doing a very good job,” Hajec quipped.
Andrew “Art” Arthur, senior fellow in law and policy at the Washington, D.C.-based Center for Immigration Studies (CIS), predicted a 5-4 split when the high court rules.
“I believe this is going to be a pretty strong decision upholding decades of precedent,” he said.
Kyle Shideler, director of the threat assessment office at the Washington-based Center for Security Policy, said he is not sure how the court might come down on the issue. But on a strictly policy standpoint, he said, it would be a huge blow against national security if the administration were to lose.
“It’s absolutely vital that the president maintains the ability to determine who enters the country from a security standpoint,” he said.
The notion that the policy is nothing more than a dressed-up Muslim ban, Shideler said is “nonsensical.”
“It’s entirely premised on the concept of identity management — what information they [the impacted countries] can give us,” he said.